MOTION TO DISMISS FORECLOSURE FLORIDA HOW TO
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Therefore, the Court held that “with each subsequent default, the statute of limitations runs from the date of each new default providing the mortgagee the right, but not the obligation to accelerate all sums then due under the note and mortgage.” It follows, “the statute of limitations on the balance under the note and mortgage would not continue to run after an involuntary dismissal, and thus the mortgagee would not be barred by the statute of limitations from filing a successive foreclosure action premised on a ‘separate and distinct default’” within five years of said default. In its Novemopinion affirming the Fifth District’s decision, the Florida Supreme Court explained that a mortgagee can bring consecutive foreclosure actions against a mortgagor because each new default of a mortgage installment contract creates a new and independent right in the mortgagee to accelerate payment on the note in a subsequent foreclosure action.

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The Fifth District Court of Appeal reversed the trial court’s decision and certified the question to the Florida Supreme Court. The trial court entered a judgment in favor of the borrower, which stripped the mortgage from the property, and U.S. In 2012, the borrower filed a lawsuit for quiet title to the property, claiming that the five statute of limitations had run and the mortgage was therefore unenforceable. Bank’s counsel failed to appear at a case management conference. The case was dismissed with prejudice on after U.S. Bank”), filed suit to foreclose on May 16, 2006. In Bartram, a borrower defaulted on his mortgage loan by failing to remit payment for the month of January 2006 and the mortgagee, U.S. The Court ultimately held that where a mortgagee’s prior foreclosure action was dismissed with prejudice, its subsequent foreclosure case is not barred by the statute of limitations so long as (1) the newly alleged default date post-dates the dismissal of the first action and (2) the subsequent lawsuit is filed within five years of the newly alleged default date. Bank, N.A., SC14-1265, which provided some clarity to the issue but left plenty to parse.

On November 3, 2016, the Florida Supreme Court issued its long awaited decision in Bartram v.

MOTION TO DISMISS FORECLOSURE FLORIDA HOW TO

However, the question of how to apply the statute of limitations in subsequent mortgage foreclosure cases where the mortgagee’s prior foreclosure suit was dismissed has been the subject of significant litigation and scholarly debate in Florida for almost a decade. At first glance, this seems fairly cut and dry.

Action Item: If a prior foreclosure action has been dismissed with prejudice, mortgagees may bring new actions to foreclose on mortgages based upon post-dismissal payment default, so long as the new action is brought within five years of the new default.įlorida Statute section § 95.11(2)(c) states that the statute of limitations to foreclose a mortgage is five years.

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